Supreme Court Rules on Frozen Sperm Case–No Social Security for Twins Conceived After Husband’s Death

You all know I’ve been following the case of Astrue v. Capato for a long time. There are many past posts. The Supreme Court has now decided the case. Bottom line: on these particular facts, children conceived from frozen sperm after the death of the husband who provided the sperm cannot receive his social security benefits.

The opinion is unanimous but also rather complicated. I’ll give a first read/reaction here, subject to later amendment.

Karen and Robert Capato were married. Sadly, he died just a few years into the marriage. Before he died, some of his sperm was frozen. Nine months or so after his death, Karen used the sperm to create twins who were born 18 months after his death. She sought social security benefits for the children.

Now some baseline background. If the children had been born before Phillip died there is no doubt that they would have qualified to receive benefits. There’s also no doubt that the children would be entitled to benefits if they had been conceived before Phillip’s death but born after it.

It’s only since the advent of the technology that allows for freezing of sperm that you can have posthumously conceived children. And it’s clear that when Congress enacted the existing statutes, it wasn’t thinking about that problem. (The statutes were enacted before the technology existed.)

Karen Capato contended that since the children were biologically related to Phillip, and since she and Phillip were married they were his children within the meaning of the act. Biology and marriage was all you needed. The Court rejected this view. Instead, it sided with the Social Security Administration. The SSA contended that it’s not enough to simply have a biological connection–whether the parents are married or not–the child must qualify as an heir under state intestacy provisions (provisions that govern distribution of an estate where a person dies without a will) or satisfy other statutorily identified alternatives to that requirement.

The Court sided with SSA in part because the agency is entitled to deference–it’s enough that its definition is a plausible one. That’s a technical point I won’t discuss further.

But it’s important to understand the meaning of this ruling. Given the SSA position, Karen Capato didn’t automatically lose. Instead, the question shifted to whether the twins would inherit under Florida law had there been no will. Florida law provided that the twins had to be conceived in their father’s lifetime in order to qualify for intestate succession. They weren’t and so they don’t and so they cannot get the social security benefits. If Florida changed its law or if a different state’s law applied, the outcome could be different.

That means this isn’t a general rule that posthumously conceived children will never get social security benefits. Other states do have laws different from Florida and might provide for intestate succession. In that case, the analysis would move on to another stage–one not addressed here. At that point it seems to me that entitlement will depend on the interpretation of a different provision of the statute–one that requires that the child to have been dependent on the insured at the time of the insured’s death. Just glancing at this you might think it is hard to see how a posthumously conceived child could satisfy this test, but the fact is, we’ll need to wait and see. This issue is not decided in the case.

I’m inclined to agree with the resolution reached by the Court. It’s true that Karen Capato’s argument is simple and straight-forward–she asserted that a child biologically related to both members of a married couple must necessarily be a child of that couple. But you can see that this argument privileges both marriage and genetics. Other children will have to jump through various hoops, but not those of the married, genetically related variety. And of course, I’m not a fan of either of those privileges.

Remember that this isn’t the end of the story–at least, not for posthumously conceived children generally. Two avenues for change are apparent. State law here is crucial and states revise their laws all the time. And the SSA could be persuaded to change its interpretation of the law.

Enough for now. I’ll give it a bit more thought and come back to it if I need to.

I agree with this decision. I think that it is sound and logical because they were never dependent upon the deceased, they were not born before his death nor were they born during the year of death where they would have reasonably expected to have been supported by him. He is still very much their father however.

This brings me to a new belief of mine that his own wife might not have been entitled to his death benefits. Dead people have dead cells that cannot be reproduced. If your dead, your dead and no part of you remains alive. For instance, if your brain is dead but your body is on life support, you are not considered legally dead. Oh sure your dead enough for them to harvest organs out of but not fully dead until the body is dead as well. What difference should it make how much of the body is on life support after that brain is dead? His cells were on life support. When a person reproduces the entire body is reproduced. We know that the entire body is usually alive and present through the reproductive process and we know that sometimes the entire body is alive and not present through the reproductive process and now we are learning that the entire body can be all but dead and entirely not present for the reproductive process excepting that 1 cell kept on life support for the purpose of reproducing. I think we may need to think about the ethics of keeping a person’s body alive and on ice to serve the purposes of the living after that person is all but dead and gone. Its almost like the perfect slave all body and no brain there to argue or change its mind the body cannot say no when it is separated from the brain.
When a living organ is transplanted and the donor dies that part of him lives on in the body of the recipient. The donors body is not entirely dead until the recipient dies. I think we can reconcile that the donor died earlier only because the part of him that remains alive is part of the working system of another person’s life rather than remaining a part of the working system of the life of the body it came from. When sperm is on ice it is not supporting the life of another living human being, it is still very much a representative of the life of the body it came from and its purpose is to reproduce that person’s body and will never serve to reproduce the body of another person. What if we had to keep the entire body of a man on life support in order to harvest his sperm when he was dead and there were just a bunch of freezers with brain dead guys laying in them? How is that really any different other than that being able to simply keep his sperm alive for the same purpose is just more cost effective because it uses up so much less space and energy. Being able to store a few of his cells leaves a smaller carbon foot print than storing his entire body or just the lower half of it. Although it might take up less space in the grave yard so its a reall 50% – 50% on the “is this a green” practice scale. I say her husband is still alive as long as his cells are alive and if she wants to inherit from him or collect on his life insurance his sperm should be thawed out and destroyed and signed off on by a third party disinterested witness. Then there would be none of this posthumous nonsense.

I think I wrote about this before in response to a comment you must have posted somewhere else? It’s a curious idea about when a person is dead and it is the basis of this sort of interesting young adult novel called Rewind. You might enjoy it. But in general I don’t think you’ll find much support for the proposition that a person remains alive as long as their gametes are frozen somewhere. It certainly makes no sense to me.

There are so many things one could mean when you say “he is still their father.” Of course, the genetic connection is enduring. So he is still (and will always remain) their genetic father. He is not (and never has been) their legal father. (That’s partly what this opinion is about.) He has never been their social father in the sense that he has never acted the role. But he may, from the point of view of the children, be someone they think of as their father. This is the challenge with our language. The words –words like “father” are powerful and freighted with meaning, but they can mean so many different things, both in different contexts and to different people.

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Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.